Gordon v. Fuller

Full title: James Bryan GORDON, Plaintiff-Appellant, v. Gerald FULLER; Edward M…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 18, 2001

8 F. App'x 667 (9th Cir. 2001)

Opinion

8 Fed.Appx. 667 (9th Cir. 2001) James Bryan GORDON, Plaintiff-Appellant, v. Gerald FULLER; Edward M. Wilkes, III, Defendants-Appellees. No. 00-16788. D.C. No. CV-00-01071-RCB. United States Court of Appeals, Ninth Circuit. April 18, 2001

Submitted April 9, 2001. ^*

* Because the panel unanimously finds this case suitable for decision without oral argument, Gordon's motion for oral argument is denied. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

State prisoner brought § 1983 action, asserting claims of illegal search and seizure, violations of his right to privacy, violations of his due process rights, and conspiracy to violate his constitutional rights. The United States District Court for the District of Arizona, Robert C. Broomfield, J., dismissed action on basis that it was barred by Heck v. Humphrey. Prisoner appealed. The Court of Appeals held that dismissal would be vacated on appeal, and matter remanded, in light of reviewing court's inability to discern from the record whether allegedly illegal search and seizure had any connection to conviction for which prisoner was incarcerated.

Vacated and remanded.

Page 668.

Appeal from the United States District Court for the District of Arizona Robert C. Broomfield, District Judge, Presiding.

Before CANBY, KOZINSKI, and RYMER, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

James Bryan Gordon, an Arizona state prisoner, appeals pro se the district court's 28 U.S.C. § 1915A(b)(1) dismissal of his 42 U.S.C. § 1983 action alleging illegal search and seizure, violations of his right to privacy, violations of his due process rights, and conspiracy to violate his constitutional rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals pursuant to 28 U.S.C. § 1915A(b)(1). See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We vacate and remand.

The district court dismissed Gordon's action as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We are unable to discern from the record whether the alleged illegal search and seizure had any connection to the conviction for which Gordon is presently incarcerated. We vacate the district court's dismissal and remand for the district court to give Gordon notice and opportunity to amend his complaint. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc).

VACATED AND REMANDED.